The Texas Supreme Court rejected the right of a utility to acquire property as a "common carrier" because of the lack of control of the common carrier.
As noted in the Michigan Hathcock case, from the earliest times, the notion of a right of a private utility to acquire is premised upon regulation of the utility by the local service commission.
The Texas Supreme Court understood the issue and denied a pipeline company’s right to condemn because it was not appropriately regulated.
However, the Supreme Court disagreed. It said that the permit alone did not conclusively establish Denbury Green’s status as a common carrier and conferpower of eminent domain.
The court found that the RRC does not monitor the operations of the pipeline to determine its "public use" status.
Willet noted that a spokesperson for the Commission stated in 2008 that to her knowledge the RRC had never denied a permit for common carrier status.
"Private property cannot be imperiled with such nonchalance, via an irrefutable presumption created by checking a certain box on a one-page government form. Our Constitution demands far more," Willet wrote.